xv. claims of harm & lex aquilia Flashcards
damages
= obligatory claim of someone who has been harmed by the forbidden conduct of another person against the injuring party
object of absolute legal protection
= has to respected by everybody and it’s disregard is generally unlawful
→ eg. harm caused to property and bodily integrity
indemnification (INDEMNITAS) vs. penalty POENA
indemnification: balancing out the loss caused to the injured party
penalty: retaliation as a punishment and deterrence
INIURIA
= delict that sanctions violations of personality rights and protects the honour and physical integrity of free Romans. It requires DOLUS: the intention of insulting the injured party (ANIMUS INIURIANDI)
ACTIO INIURIANUM
= penal action, fine determined based on estimate made by injured party which the judge evaluates with the principle of justice and equity.
DAMNUM INIURIA DATUM
= delict that regulates liability in cases of destruction or harm to property, it’s stature basis is the LEX AQUILIA.
LEX AQUILIA
= covers only immediate, active infliction of harm and injurer must have acted unlawfully and culpably.
- OCCIDERE: killing of slaves and four legged herd animals
- CORRUMPERE: URERE (burning), FRANGERE (breaking), RUMPERE (wounding)
ACTIO LEGIS AQUILIAE
= ACTIO MIXTA, combines compensation for lost value and penance → the basis for calculation is the highest value of the object in the last year
→ if harm was inflicted indirectly: ACTIONES IN FACTUM / ACTIONES UTILES (constructed in analogy)
DOLUS
= delict of harming another person by malicious deceit or by acting in bad faith
→ ACTIO DE DOLO is only a subsidiary action when not other actions exist!
→ EXCEPTIO DOLI
METUS
= delict of harming another person by threat or force and requires a serious, unlawful or immoral restriction of another’s freedom.
→ ACTIO QUOD METUS CAUSA: penal action in case of no restitution
→ EXCEPTIO METUS
OCCIDERE
= active, immediate killing of slaves and four legged herd animals
MORTIS CAUSAM PRAESTARE
granted az an analogous delict to OCCIDERE if killing of a slave or four-legged herd animal is brought about without direct action but still unlawfully and culpably
→ ACTIO UTILIS / ACTIO IN FACTUM
consumption
= destroys the substance but used as intended: not under third chapter but under analogous action ACTIO UTILIS
grounds for legal justification
- self-defence
- necessity
- permitted self-help
- special authorisation by the legal system (magistrates)
- consent of the injured party
VIR BONUS
= the objective standard (CULPA IN ABSTRACTO) to which due diligence is measured, the epitome a law-abiding decent Roman.
Differentiated for different roles and actions (eg. BONUS MEDICUS)
circumstances precluding fault
- mental incapacity
- command of dominus or pater families
- harmful carelessness of the injured party
concurrence of claims
- either EX CONTRACTU oder EX DELICTO
- however, if EX DELCITO would be higher, then it can be bough for the remaining value after an EX CONTRACTU action
- if injured party receives compensation, cannot bring a REI VIDNICATIO anymore
- if already received compensation under CONDICTIO FURTIVA but would be higher under LEX AQUILIA, than it can also be brought for the difference
noxal liability
if perpetrator is found liable for injury, injured party may bring claims against principal. What counts is who has power over injurer at the time the claim is brought and not when deed was committed (NOXA CAPUT SEQUITUR)
NOXAE DEDITIO
= surrending perpetrator to injured party. It is denied if principal knew of the offence and could have prevented it or ordered the harm to be inflicted. Then the principal is sentenced as he has committed the deed and injuring party is granted a direct action.
other groups who can claim damages by analogous action
- usufructuaries for the properties in which they have a right in rem
- pledgee for up to the value of his claim against secured debtor
- bona fide possessor
- usufructuary lessee if he provides guarantees that the owner will not bring a claim
- parties liable under CUSTODIA
litiscrescence
= defendant denies his responsibility in front of prater but later found guilty by index, then must pay DUPLUM
